PLANNING AND ENVIRONMENT COURT OF

CITATION: Seymour CBD v. Noosa Shire Council [2001] QPEC 066 PARTIES: SEYMOUR CBD PTY LTD Appellant v NOOSA SHIRE COUNCIL Respondent FILE NO/S: 4178 of 2001 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: DELIVERED ON: 25 October 2001 DELIVERED AT: HEARING DATE: 12 October 2001 JUDGE: Judge Robin Q.C. ORDER: Preliminary issues determined CATCHWORDS: Acts Interpretation Act 1954 s 7, s 32A Integrated Planning Act 1997 s 3.5.22, s 3.5.23, s 3.5.30, s 3.5.33 Local Government (Planning and Environment) Act 1990 s 1.4(1), s 6.1(1), s 8.4, s8.10(3) Noosa Town Planning Scheme Statutory Instruments Act 1992 s.7 Appeal against Council’s refusal to extend currency period of a development permit for material change of use – determination of preliminary issues – original development application and approval held to contravene mandatory provisions of Town Planning Scheme – “gross floor area” excessive under scheme definition - appellant’s contention relevant definition was in s 1.4(1) of the Local Government (Planning and Environment) At 1990 rejected (s 8.10(3) not having effect that Scheme definition was supplanted) – site cover excessive – landscaped open space was inadequate – impermissible to include a landscaped podium (held not “land” in this context) – Council lacked power to relax requirements – whether approval sought to be extended might be saved on basis Scheme requirements were unreasonable – no evidence of unreasonableness – Council held not estopped from setting up invalidity of its original approval in context of request for extension. 2

Pacific Seven Pty Ltd v. The City of Sandringham (1979) 42 LGRA 395, 403; Greet v. Council (2001) QPEC 063; Widgee Shire Council v. Bonney (1907) 4 CLR 977 at 983; Roy Somerville Surveys Pty Ltd v. Logan City Council (1991) 74 LGRA 104; Gatehouse v. Brisbane City Council (1984) QPLR 90; Jezreel Pty Ltd v. Brisbane City Council (2001) QPELR 92; Yamauchi v. Jondaryan Shire Council (1998) QPELR 452, 455; Telfrid Corporation Pty Ltd v. Logan City Council (2000) QPELR 91; Day Ford Pty Ltd v Sciacca (1990) 2 Qd R 209; Project Blue Sky Inc v. The Australian Broadcasting Authority (1998) 194 CLR 355, 390; Warringah Shire Council v. Murphy (1974) 2 NSWLR 195; The Commonwealth v. Verwayen (1990) 170 CLR 394; Crabb v Arun District Council (176) 1 Ch 179; Roma Electric Light and Power Company Limited v Hair (1955) St R Qd 311; Wort v. Whitsunday Shire Council (2001) QCA 344; Lucent Technologies Pty Ltd v Gold Coast City Council, 1579 of 2001, 24 August 200; Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) 21 FCR 192; Queensland 2000 Pty Ltd v. Council of the (2000) QPE 044; Queensland Fencing Supplies Pty Ltd v. Logan City Council (1996) QPELR 233; Quach v Marrickville Municipal Council (1991) 22 NSWLR 55

COUNSEL: Mr J. Haydon for the appellant Mr R. Litster for the respondent SOLICITORS: Stubbs Barbeler Grant for the appellant Wakefield Sykes for the respondent

[1] The underlying appeal by Seymour CBD Pty Ltd is against the refusal by the

respondent Council of a “request for an Extension to the Currency Period and an

Application to Change a Condition of Development Approval relating to land

situated at “Bay Village”, 18 Hastings Street, Noosa Heads.” The condition sought 3

to be changed is Condition 36.1 in the Council’s decision notice dated 1 October

1999:

“36. This Development Permit for a Material Change of Use of Premises lapses if:-

36.1 The use or erection of a building or other structure associated with the use, has not been commenced by June, 2002.”

The application sought a four year extension of time.

[2] The appellant’s planning consultant’s letter of 26 June 2001 by which the request

was made under ss 3.5.22 and 3.5.33 of the Integrated Planning Act offers the

following background:

“2.0 BACKGROUND

It should be noted that the site is currently developed for commercial purposes. The northern part (Hastings Street frontage) contains 2 storeys of commercial uses. The southern part of the site contains a 2 level carpark. The approved development, put simply, reduces the commercial component and introduces a significant residential component. The development provides for a maximum of 23 commercial tenancies (shops, professional offices, medical centre and restaurants) and 57 multiple dwelling units.

The application was originally lodged in November 1997. Approval was granted by the Council in May 1998. An appeal was then lodged against 3 conditions of the approval. The appeal was not pursued and was withdrawn in July 1999. A subsequent application was made for minor changes to plans and conditions in July 1999, which was approved in September 1999.”

The proposal was for a building height of two storeys (7.8 metres) within 10 metres

of Hastings Street and four storeys (15 metres) for the balance of the site. The

Council’s response is recorded in paragraph 4 of the Notice of Appeal:

“By letter dated 21 August, 2001 the Respondent decided to refuse to extend the currency period for the following reasons:- (a) The proposed development is not in keeping with the character now sought for the Hastings Street precinct. (b) The additional gross floor area and site coverage adds significantly to the visual bulk and scale of the building and is likely to adversely impact on the amenity of the streetscape and locality. The lack of 4

landscaped open space further accentuates the appearance of bulk and contributes to a loss of amenity on site. (c) The development is contrary to non-discretionary provisions of the Schedule to the Planning Scheme, relating to gross floor area, site coverage and minimum landscape open space. (d) The development has not been publicly notified since November 1997 and the community has not been allowed the opportunity to comment about the proposal since that time. The public may raise valid planning issues that should be considered particularly since the proposal’s non-compliance with the current Scheme requirements are substantial and are not minor.”

[3] On 28 September 2001 the court ordered the hearing on 12 October 2001 of the

preliminary issues raised by a letter of 25 September 2001 of Wakefield Sykes, the

Council’s solicitor:

“Since my letter of 17 September 2001 I have given further consideration to the question if there are any preliminary issues of law arising out of the appeal and have taken further instructions in relation to the matter.

As a result I advise that the Council does wish to raise the following preliminary issues:-

1. The approval given by the Council on the 28 May 1998 was invalid, void and beyond the power of the Council in that such approval contravened mandatory provisions of the Town Planning Scheme relating to gross floor area, site cover and landscaped open space.

2. The approval given by the Council on the 30 September 1999 was invalid, void and beyond the power of the Council in that such approval contravened mandatory provisions of the Town Planning Scheme relating to gross floor area, site cover and landscaped open space.

3. For the applications referred to in 1 and 2 above to have been approved, a rezoning of the land would have been required.

4. In the circumstances, neither the Council nor the Court has the power to vary condition 36.1 or extend the currency period.”

and also the question “whether, as a matter of law, the respondent may be estopped

from contending its approval and/or modification of approval are invalid and

incapable of being considered by the court in the principal appeal”. 5

These are the court’s reasons for its determination of those questions.

[4] The invalidity the Council now contends affects the original May 1998 approval

arises under Part E of the Town Planning Scheme for the Shire of Noosa, gazetted

15 December 1990. Omitting the Appendix and sub-clauses (6) to (12) inclusive of

clause 28, Part E provided:-

“Part E Special requirements for land included within the residential high density zone with frontage to Hastings Street. 27.(1) Notwithstanding any of the provisions contained within Part F of this Town Planning Scheme, the provisions of clause 28 of this Part shall apply to any land included within the Residential High Density Zone and having frontage to Hastings Street; and (2) Without limiting the generality of any provisions contained herein or in any By-law of the Shire, no provision of this Part shall be deemed to confer any right to erect or use premises for any purpose other than subject to the conditions specified in this Part or in the By-laws provided that:- (a) The provisions of clause 28 of this Part shall not apply to uses which were existing uses on the appointed day; and (b) Subject to the provisions of sub-clause (3) of clause 24 hereof where an existing building or other structure is extended or the area of land occupied by an existing use is increased, the requirements of this Part shall apply only to the extension of the building or other structure or to the use of the additional land.

28. Premises shall not be erected or used for any purpose unless the following requirements are met:- (1) The population density does not exceed three hundred and forty (340) persons per hectare, calculated in accordance with Appendix 1 of Part A hereof; (2) The gross floor area does not exceed the maximum allowable population in persons multiplied by forty (40), provided that the maximum gross floor area shall not exceed thirteen thousand six hundred (13,600) metres; (3) The site cover does not exceed forty-five (45) percent; (4) The provision of landscaped open space in square metres is not less than the proposed population in persons multiplied by fourteen (14); (5) Compliance with the performance standards specified in appendix XII for the particular location of the site; 6

……

29. Notwithstanding any of the provisions of clause 28 hereof the Council may dispense with or modify any or all of the provisions contained in sub-clauses (5) to (12) inclusive, if it considers that such dispensation or modification is justified having regard to:- (a) The existing development in the area;

(b) The existing or proposed future amenity of the area;

(c) The particular characteristics or attributes of the proposed development; and

(d) Provision of public access through the site.”

(Clause 24(3) is:-

“(3) In respect of an existing use where:- (a) a change of use; (b) an increase in the intensity of an existing use; (c) an increase in the number of employees; (d) an increase in the number of vehicles used in connection with the development; or (e) an extension to the total use area of a use is intended or proposed, the Council may require an increase in the provision of parking spaces associated with the existing use;”)

[5] At the hearing of the preliminary points, the Council, represented by Mr Litster,

indicated it would not present arguments on that day that its approval of 30

September 1999 was invalid, void and beyond power. 7

Gross Floor Area

[6] Exhibit 2 sets out in tabular form the parties’ experts’ views of measurements; Mr

Sobey’s are given on behalf of the appellant, Mr Venn’s on behalf of the Council:-

“ 1997 Application

S. Sobey J. Venn GROSS FLOOR AREA § Ground level 1685m² 1693m² § Level 1 3115m² 3131m² § Level 2 2550m² 2543m² § Level 3 2430m² 2595m² 9780m² 9962m² § Excluding Level 1 carpark (P & E Act definition) 1895m² 1792m² 7885m² 8170m² ”

[7] It is intriguing to note the differences, which the court cannot resolve (and need not

resolve) at the moment. The important issue is whether the Level 1 carpark is to be

included or not. If it is included, gross floor area exceeds what clause 28(2) would

allow.

[8] The Plan definition originally was:-

““Gross floor area” – The sum of the floor areas (inclusive of all walls, columns and balconies whether roofed or not) of all storeys of a building or buildings, provided that the term does not include:-

(a) the area (inclusive of all walls and columns) at any topmost storey of lift motor rooms or air conditioning or other mechanical or electrical plant and equipment rooms; (b) - (i) (A) the area of that part of any private balcony, which is within two point five (2.5) metres of external walls of the building (B) unenclosed areas, over which the building cantilevers, of two point five (2.5) metres width or less; 8

(ii) provided that the combined total of (A) and (B) hereof does not exceed fifteen (15) percent of the gross floor area of the building;

(c) areas (inclusive of all walls and columns) of all space used or intended for use for the parking of motor vehicles, where such area are located at or below existing natural ground level;

(d) lift spaces;

(e) stairways located between the first storey and the second storey;

(f) accessible open decks; and

(g) rootfop terrace areas constructed in accordance with the provisions of sub-clause (8) of clause 36 hereof.”

[9] In the Gazette of 4 March 1994 there appeared an Order in Council amending the

introduction in that definition by inserting after “all storeys of a building or

buildings” the expression “that constitute storeys for the purposes of the definition

“building height in storeys”. The significance of the amendment, in Mr Litster’s

argument, was not its substance, but its being made at all. Mr Litster argues it

reflects a (proper) recognition that the Plan definition continues in effect, and has

not been supplanted, as Mr Haydon (for the appellant) submitted, by a definition of

“gross floor area” which became part of the statutes of Queensland on the coming

into operation of the Local Government (Planning and Environment) Act 1990 (“P

& E Act”), section 1.4(1) of which provided:-

“In this Act unless the contrary intention appears – …. “gross floor area” means the sum of the floor areas (inclusive of all walls, columns and balconies, whether roofed or not) of all storeys of every building located on a site, excluding the areas (if any) used for building services, a ground floor, public lobby, a public mall in a shopping centre, and areas associated with the parking, loading and manoeuvring of motor vehicles;” 9

[10] By the time of Reprint No. 1 (as in forced on 31 October 1994, including

amendments up to Act 11 of 1994) the words “unless the contrary intention

appears” had been removed. It was not contended that this removal made any

difference. Whatever work was done by the removed expression is now done by

s.32A of the Acts Interpretation Act 1954:-

“Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.”

[11] The Town Planning Scheme for the Shire of Noosa was already in effect when the P

& E Act was enacted. The P & E Act did not come into force for sometime, while,

among other things, transitional arrangements were worked out. These included the

replacement by s.5 of the Local Government (Planning and Environment) Act

Amendment Act (No. 8 of 1991) of s.8.10(3) of the P & E Act (effective from 15

April 1991) in these terms:-

Each town planning scheme approved by the Governor in Council prior to the commencement of this Act and which is in force immediately prior to the commencement of this Act, is, to the extent it conforms with this Act, to continue to have force and effect as if it were a planning scheme that had force and effect under this Act.”

Mr Haydon’s argument was that the P & E Act definition of “gross floor area”,

which excludes above ground carparking, supplanted the Plan definition. That the

Governor in Council took a different view, in awaiting the Plan definition by the

Order in Council gazetted on 4 March 1994 – necessarily on the basis that the Plan

definition was still effective – does not determine the issue. However, I am un-

persuaded that the P & E Act was intended to or did have the effect of replacing

definitions of “gross floor area” in the Noosa Plan and/or any similar town planning

schemes throughout Queensland. The likelihood is that a concept of such

importance would be defined in possible idiosyncratic ways to mesh in with related

parts of a particular town planning scheme. Unforeseen and undesirable 10

consequences might well follow from universal imposition of a new definition

impacting on the effect of local town planning schemes, from “on high”, as it were,

without any attention being given to what the effect of the new definition might be.

In my opinion variance in a town planning scheme definition from any definition of

the same expression found in the P & E Act does not mean that the scheme does not

conform with the Act, for purposes of s.8.10(3).

[12] By s.7 of the Acts Interpretation Act, in an Act reference to a law (including the

Act) includes a reference to statutory instruments made or in force under the Act;

statutory instruments (defined in s.36 as having the meaning given by the Statutory

Instruments Act 1992 – see s.7) include town planning schemes (see Queensland

2000 Pty Ltd v. Council of the City of Gold Coast (2000) QPE 044, [35]). Thus,

there is a basis for arguing that expressions used in a town planning scheme adopted

or given efficacy under an Act use terms defined in the Act in the same sense.

Such, in my opinion, is not the position here. In my opinion, not only are Plan

definitions of “gross floor area” unaffected by the statutory definition where they

were in force before the commencement of the P & E Act (as here), it remains open

to those formulating town planning schemes to adopt a different definition.

[13] The definition of gross floor area in the Act has its own useful work to do, filling

out respects in which the Act descends into some detail in respect of town planning

matters:-

(a) in s.1.4 in the definition of “erect”, which includes work etc “that increases the gross floor area of a building”;

(b) in s.3.1(2)(b), to authorise a local government to consent to an increase of 10% or less in gross floor area for a continuing lawful use; 11

(c) in s.4.15(3)(c), so that “a proposed modification is of a minor nature if gross floor area is to be increased by less than 5%”;

(d) in s.8.4(1A), which sets a maximum of 100m² “gross floor area for the specified use” – the context is the general proscription in the future of combinations of uses of general store, local store, shop or store with a service station use (none of those uses being defined in the Act).

It is noteworthy that s.8.4 operates “despite anything in a planning scheme”. The

making of this express provision tends to reinforce the view that when the Act is

intended to override the effect of local government planning schemes, it says so.

[14] The above list indicates where the Act applies the definition. If it be necessary, I

would rule that in the present context, so far as application of the statutory

definition is concerned, “the contrary intention appears”, or the exception

contemplated in s.32A of the Acts Interpretation Act.

[15] The Council thus succeeds upon its preliminary point in relation to “gross floor

area”.

Site cover.

[16] Mr Sobey has measured site cover at 3,731m² or 63.6%. Mr Venn’s numbers are

higher. The Council’s approval of existing development on the appellant’s site for

30 shops, commercial premises, professional offices, catering shops, caterer’s

rooms, surgery and associated carpark in the 1980’s allows site cover of the order

of 80%. Clause 27 of the current Planning Scheme makes provision for existing

uses and extension of existing buildings. Part E applies only to the extension. I

thought it was common ground that where the extension involves adding storeys, 12

site cover was assessed by regarding the additional storeys as a new building

constructed on the ground. In fact, the appellant’s proposal involves some

reduction in site cover from the 80%. But the new storeys proposed on their own

will represent “site cover” of 63%, if not more.

[17] Clause 29 permits relaxations, but not in respect of site cover (or gross floor area or

minimum landscaping requirements). However, the amendments of the Planning

Scheme gazetted on 4 March 1994 brought in a new definition of site cover and

also a relaxation provision in respect of it by adding the following proviso to clause

28(3):-

“provided that Council may modify this provision to a maximum of sixty (60) percent, where:-

a. Covered carparking cannot be achieved in basement floor due to flooding constraints; b. Site cover for that part of the building which does not constitute covered carparking does not exceed forty-give (45) percent; c. A landscaped podium is proposed over the whole or part of the covered carpark area; d. Street frontage setbacks and side and rear boundary setbacks in respect of any covered carparking area comply with the provisions of sub-clauses (5) and (6) of this clause without the need for modification; and e. Existing vegetation or existing or proposed buildings will buffer the part of the building which constitutes covered carparking;”

[18] On any view, the 1997 application purported to permit excessive relaxations

without any source of authorisation being pointed to.

[19] Accordingly, the Council has established its preliminary point in relation to site

cover. 13

Landscaping

[20] The issue in relation to landscaping is whether a landscaped podium qualifies for

inclusion as “landscaped open space” required by clause 28(4). Mr Haydon’s

argument was that podium landscaping, as acknowledged by clause 28(3)c

qualifies. He submitted that, read as a whole, the Planning Scheme acknowledged a

wide variety of ways in which landscaped open space might be provided; there is

special provision in clause 36 as to how it should be provided in relation to Multiple

Dwellings etc:-

“(6) Landscaped open space required to be provided in accordance with this clause shall:- (a) Include provision of a six (6) metre landscaped setback to any street frontage, provided that this setback may be reduced to a minimum of two (2) metres in regard to visitor parking, where:-

(i) covered car spaces are not located between the building façade and the road frontage; and (ii) the manoeuvring area for covered car spaces is not located between the building façade and the road frontage;

(b) Include an area comprising at least twenty (20) percent of the site which is capable of being deeply planted;

(c) Include:-

(i) fencing setbacks averaging two (2) metres to any road frontage; and (ii) an area of deep planting adjacent to any road frontage of an average three (33) metres in width, provided that this area of deep planting may be included in the area calculable for the purposes of paragraph (b) of this sub-clause; and

(d) Be kept clear of clothes drying area, driveways, parking spaces, refuse disposal areas or other obstacles which preclude its use as landscaped open space;”

Reliance was placed on well-known dicta commending the use of a practical,

commonsense approach, rather than a highly legalistic one in the interpretation of 14

planning schemes; see Pacific Seven Pty Ltd v. The City of Sandringham (1979) 42

LGRA 395, 403, Greet v. Logan City Council (2001) QPEC 063 and Widgee Shire

Council v. Bonney (1907) 4 CLR 977 at 983.

[21] The Noosa Planning Scheme contains the following definition:-

““Landscaped area”, “landscaped buffer strip”, “landscaped open space”, “landscaped building setback”, “landscaped setback” and “landscaping”. The treatment of land, excluding paving utilised for driveways, parking areas, vehicular access lanes and the like, for the purposes of enhancing or protecting the amenities of the site and the locality in which it is situated by:-

(a) planning of trees, hedges, shrubs or ground covers;

(b) laying out of gardens or courts;

(c) formation of banks, terraces or other earthworks;

(d) screening by fences, walls or other means; or

(e) construction of other amenity features;”

and deals with landscaping in Part D – General Requirements for Development:-

“23.(1) Any premises which is required to provide landscaping shall not be used for any purpose unless all landscaping required to be established as such, in accordance with the provisions of this Town Planning Scheme, is landscaped in accordance with any relevant Council policy and a properly prepared landscape plan, where applicable, approved by the Shire Planner;

(2) A landscape plan pursuant to sub-clause (1) above shall:- (a) Contain the following information :– (i) site works:- (A) the location, size and species or vegetation type of existing trees;

(B) trees proposed to be retained and necessary protective measures;

(C) trees proposed to be removed;

(D) the existing contours; 15

(E) the finished surface levels;

(F) details of temporary protective drainage and slope stabilisation measures; and

(G) details of underground and overhead surfaces;

(ii) for hardscape, the proposed paving, walls, fences, structures, furniture, pools, water features, recreation facilities, irrigation systems and methods of drainage’ and (iii) for softscape:-

(A) proposed plant materials, including species, location, numbers and details of the minimum size at planting;

(B) preparation and mulching of planting beds; and,

(C) details of turfing and edging treatments;

(b) Comply with any condition of approval pertaining to the site or development; and

(c) Unless otherwise determined by the Council, be prepared and lodged for approval by the Shire Planner:-

(i) prior to or in conjunction with an application for building approval associated with the proposed use; or (ii) in any other circumstances, prior to the commencement of the use;

(3) Landscaped open space is to be established generally in accordance with the approved landscape plan, prior to the premises being occupied or the use being commenced and is to be maintained at al times thereafter to the satisfaction of the Shire Planner; and

(4) The requirement for the submission of a landscape plan or, the degree of detail required to be provided in a landscape plan may be dispensed with or modified by the Shire Planner having regard to the location, scale and special circumstances pertaining to a particular development.”

[22] The issue boils down to whether what must be landscaped is limited to land in the

earthy sense, and at ground level, or contemplates elevated areas, as it may do 16

depending on the context, for example where there is a vertical subdivision for

strata title purposes, or an easement at some defined elevated level. One might ask

why there should be a limitation to a podium, and whether or not a roof garden atop

a tall building would not suffice – clause 28(3)c hardly amounts to a convincing

basis for distinguishing.

[23] This comes down to a matter of impression. In the end I prefer Mr Litster’s

argument that the definition points to land at ground level. It gains some support

from the reference to enhancing or protecting the amenities of “the site and the

locality”. As I understand it, the podium landscaping would not be visible to

persons outside the site. In my opinion, the landscaping requirements have the

object of ensuring that there is a certain amount of open space, appropriately

treated. I do not think this requirement is satisfied by an area of 325 or 327m²

around the pool on the second level above ground, although Mr Haydon is entitled

to use the new definition of “site cover” (gazetted 4 March 1994) whereby an area

“covered by landscaping structures, including swimming pools” is excluded as

bringing such a facility into the category of “landscaped open space” where that is

something to be supplied to a defined minimum extent in the development of land.

Although they are obviously inter-related in a practical sense, I think clause 28

requires site cover and landscaped open space to be assessed independently in terms

of relevant definitions; one does not automatically increase as the other decreases.

[24] The Council succeeds in proving deficiency in landscaped open space in the 1998

approval. 17

Permissibility of Conditions Contrary to Planning Scheme.

[25] Each of the above aspects of the principal preliminary point was approached from

another angle by Mr Haydon, placing reliance on Roy Somerville Surveys Pty Ltd v.

Logan City Council (1991) 74 LGRA 104. Clause 5.3.1 of the Town Planning

Scheme made it a requirement of the subject commercial development, given its

size, that 12 carparking spaces be provided. The implications of the Council’s

power of relaxation under clause 5.3.3 were not examined, Row DCJ in the Local

Government Court holding that section 33(16C) of the Local Government Act 1936

excluded clause 5.3.1 because, on the evidence, 10 carparking spaces was a

“reasonable” requirement. Thomas J. in the leading judgment in the Full Court at

107-08 said (commencing with a quotation from the relevant sub-section):-

“(16C) Unlawful conditions. (a) It shall be unlawful for the Local Authority in the case of an application –

(i) for exclusion of land from a zone and the inclusion of the land so excluded in another zone;

(ii) to open a new road or subdivide land; and

(ii) for approval, consent or permission to use land or use or erect any building or other structure for any purpose, to subject the approval of that application to a condition that is not prescribed by the scheme or by by-law or reasonably required by the re-zoning of the land, the opening of the new road, the subdivision of the land, the use of the land or the use or erection of the building or other structure in respect of which the application relates:

Provided that this paragraph (a) shall not apply to a requirement imposed by the Local Authority pursuant to subsection (18E) or section 34(12H).”

(The above proviso relates to contributions towards costs of water supply and sewerage works and is not material to the present question.) Subparagraph (b) of subs (16C), without limiting the generality of par (a) provides for five instances where it is declared to be unlawful for the local authority to impose particular conditions upon particular approvals. Paragraph (c) then provides: 18

“(c) A requirement prescribed by the scheme or by by- law does not apply with respect to any approval, consent or permission specified in paragraph (a) in a case where, under that paragraph it would be unlawful for the Local Authority to subject the approval, consent or permission to that requirement as a condition thereof.”

A necessary background to reading this section is afforded by s.33(6A) which deals inter alia with the powers of the local authority upon considering an application for re-zoning. In this respect it provides:

“(6A)…. (d) Upon an application being referred to the Local Authority pursuant to paragraph (c), the Local Authority may – (i) approve it;

(ii) refuse to approve it; or

(iii) approve it subject to reasonable and relevant conditions.”

In turn s.33(7) gives the same power to the Local Government Court with respect to applications such as the present. Clearly enough s.33(16C) takes up the question of the conditions that may or may not be imposed by the local authority (and in turn the court). Paragraph (a) limits these by declaring all conditions to be unlawful except for three categories of condition. These are respectively: § conditions prescribed by the scheme; § conditions prescribed by by-laws; § conditions reasonably required by the re-zoning.”

The conclusion and some helpful comments appear at 109-110:-

“Under s.33(16C)(c) the “requirement” of cl.5.3.1 of the town plan does not apply with respect to this approval, because it has been found to be not reasonably required by this re-zoning of the land. Accordingly if imposed it would be an unlawful condition under par (a), and under par (c) the requirement of cl.5.3.1 “does not apply with respect to (this) approval”.

The above analysis is on all fours with that presented by Quirk DCJ in Gatehouse v. Brisbane City Council (1984) QPLR 90. That was a decision construing s.20C of the Town Planning Act which, with an immaterial exception, is expressed in the same terms as s.33(16C) of the Local Government Act. That decision which was handed down on 18 April 1981 has now stood for some ten years, 19

and it has not been seen fit to introduce any legislative amendment. I may say that I agree generally with his Honour’s reasoning in that case. His Honour was alive to the difficulties presented by such a construction, and in particular to the consequence that some imbalance is produced in as much as owners of properties with an as of right use do not have any similar opportunity of avoiding the consequences of unreasonable ordinances or unreasonable requirements in town plans. Moreover, courts have long denied any right to ignore the requirements of legislation (including subordinate legislation) on the ground that it is unreasonable. However such a power seems justified in the present context as a direct consequence of the provisions of s.33(16C). In short the legislature has seen fit to protect applicants against the imposition of unreasonable conditions. It is not inappropriate for the legislature to give such a power to a court, especially in a field overgrown with rules that are neither free from ambiguity nor universally reasonable. In practice the determination whether a requirement of a by-law or town plan is unreasonable with respect to the particular approval is likely to be confined to the Local Government Court, because of the inherent difficulty of a council determining that a provision of its own by- laws or town plan is unreasonable. It would also seem that it would only be an exceptional case in the Local Government Court in which the circumstances would persuade the Court that a provision in a by- law or town plan was an unreasonable requirement with respect to the approval sought. ….. In summary the short essential question for the disposition of the appeal is this: Is the carparking requirement of cl.5.3.1 of the town planning scheme a “condition prescribed by the scheme or by-law” within the meaning of s.33(16C) of the Local Government Act? It seems to me that there is no construction which is entirely satisfactory and I readily accept that different minds may find one solution less unsatisfactory than another. In the end I see no sufficient reason to disagree with the interpretation which was placed upon sufficiently comparable provisions by the Local Government Court in 1981 in Gatehouse and there is no reason to believe that this decision has produced any insuperable difficulties. I would answer the above question “No”. Once that answer is given, the result follows inevitably.

I agree with the following observation of Quirk DCJ. in Gatehouse (at 96): “It appears to me that the legislature, in its wisdom, has, except for very special circumstances in which the Plan prescribes expressly that a particular condition shall be imposed on any approval, left the applicability of ‘requirements’ in regard to re-zonings, subdivisions, and consent uses subject to the overriding qualification that they be relevant to the particular proposal and reasonably required by it.” 20

His Honour then expressly recognised “the difficulties inherent in this result”. The

difficulties he had in mind may have included that by clause 3.1.1 of the Town

Planning By-Law, use of the premises with fewer than 12 carparking spaces may

have constituted an offence: see page 107.

[26] Roy Somerville indicates that town planning scheme provisions are not the be-all

and end-all so far as what may be approved is concerned. The court may approve

(as Row DCJ. did) a proposal which contravenes a town planning scheme in some

particular respect(s); once one gets into examining conditions, there is a certain

flexibility in terms of only what is reasonable and/or relevant being approved.

[27] The Council may ignore its own planning scheme requirements as much as the

court. In Jezreel Pty Ltd v. Brisbane City Council (2001) QPELR 92, a submitter

appeal, the developer wished to exceed an upper limit placed on carparking. Quirk

DCJ. said at 93:-

“[4] The contention of Jezreel that the appliction was not lawfully made appears to be based on the assertion that certain provisions of the Town Plan do not allow, in the Central Business Zone, car parking to the extent that is provided by the proposal. Attention is drawn to sections of the Town Plan which provides as follows:

“18.5 Vehicle Parking within a Site 18.5.1 It shall be a requirement of every development that at all times while the use continues there shall be provided a car parking area on the site – (a) in a case where the site is within the Central Business Zone, not more than one car space for every 200 square metres of gross floor area; or (b) in any other case in accordance with the requirements in Column 2 of Table 18.2 21

as they apply to the purpose specified in Column 1 of that Table. 18.5.1A Council may at its discretion relax the requirement of para.18.5.1(a) where the development is for a residential purpose.”

[5] The car parking intended here exceeds the standard of one space for every 200 square metres of gross floor area and is “incidental to and necessarily associated with” the shopping centre and business premises. That is made clear by condition 45 of the Council’s approval and which requires that the car park does not operate as a public car park.

[6] I have some difficulty with the proposition that an application for some form of development inconsistent with a planning scheme is an incompetent application. While this may, in many cases, provide a strong reason for refusing such an application, the application itself (provided other relevant requirements are met) is nevertheless an application which must be considered and decided. If there is anything in the point it would relate to the validity of the Council’s approval of the application.

[7] It is true that there is nothing in these express requirements which would allow a car park of the kind here proposed. This however does not stand in the way of the Council’s decision conditioning the approval in a way that is inconsistent with those requirements if, on a proper consideration of the proposal itself, such a condition is warranted. That much is made clear by s.3.5.30 of the Integrated Planning Act especially in subs.(2) (see also Roy Summerville Surveys Pty Ltd v. Logan City Council (1991) 74 LGRA 104; Queensland Fencing Supplies Pty Ltd v. Logan City Council (1996) QPELR 233). The material indicates that this is what occurred and I would not rule the Council’s decision invalid on that ground.”

[28] In Queensland Fencing Supplies his Honour held that the respondent’s development

standards for poultry farms as set out in clause 6.8.1 of its Town Planning Scheme

were neither relevant nor reasonably required. By the time of this decision the

relevant legislation was s.6.1(1) of the P & E Act, whereby:-

“6.1(1) Where an application is made to a local government –

(d) pursuant to part 4 or part 5; or

(b) for any approval, consent or permission to use land or use or erect any building or other structure for any purpose as required by a planning scheme; 22

the local government is not to –

(c) subject to approval of that application to a condition that is not relevant or reasonably required in respect of the proposal to which the application relates, notwithstanding the provisions of a planning scheme;

(d) restrict the duration of the approval to less than the period prescribed by those parts (except where town planning considerations warrant a lesser period) or, in the case of a subdivision of land, require that works be commenced in a lesser time period than that which is specified in section 5.3(1).

(2) The local government and an applicant or owner of land are not to enter into an agreement and a local government is not to accept any consideration in respect of a condition that, pursuant to subsection (10) is unlawful for the local government to impose.

(3) Subsections (1) and (2) do not apply to an infrastructure agreement under division 2.”

[29] Such authorities demonstrate that it is on the basis of evidence that judgments

regarding the reasonableness of development conditions are to be made. Of course,

at this stage in the present appeal, there is no evidence on these matters. No

judgments can be made about it. The appellant’s submission is that Roy Somerville

Surveys demonstrates “that there is ample power that the Council made the approval

that it did.” As I understand the cases, it will come down to the reasonableness or

unreasonableness of the relevant stipulations in the planning scheme as applicable

to the appellant’s project. Roy Somerville itself, in a passage quoted above,

indicates that, absent unusual provisions like those mentioned in paragraphs [26],

[27] and [28] above, Scheme requirements cannot be invalidated as unreasonable.

Thomas J.’s reasons at 111 indicate that evidence on the point is necessary. Here

there is not even the slightest basis to speculate that such evidence might be

available. 23

Estoppel

[30] Assuming that invalidity of the 1998 approval might be established, we are now

approaching the difficult estoppel issue. As in the leading case, The

Commonwealth v. Verwayen (1990) 170 CLR 394, where concepts of waiver were

also considered, the matter might be thought of in different ways, for example as

raising questions of the Council derogating from its 1998 grant of approval, which

was, of course, a valuable right running with the land. No arguments about

alternative analyses were presented.

[31] Mr Litster relied on Yamauchi v. Jondaryan Shire Council (1998) QPELR 452, 455

and Telfrid Corporation Pty Ltd v. Logan City Council (2000) QPELR 91 as

authority for the proposition that a failure to comply with scheme requirements that

are not capable of relaxation is fatal. In the former, Skoien SJDC. noted that the

relevant planning scheme:

“has never contained a provision permitting the Council (or, by extension, this court – see Alati v. BCC (1994) QPELR 112) to relax the required separation distances or minimum areas for piggeries. With this may be contrasted other provisions of the Planning Scheme. …. So a breach of these requirements of the scheme would be fatal to Yamauchi’s proposal.”

[32] Yamauchi was a developer’s appeal (unsuccessful). Telfrid was a successful

application for declaration of invalidity of the Council’s grant of a development

permit to the second respondent. Quirk DCJ. said at 93-94:-

“No express power to relax relevant requirements is found in the DCP. It was pointed out the Design Guidelines are applicable to all development, as appropriate, within the DCP area. It is true that the phrase “as appropriate” is used but I would construe those words to refer to the obvious applicability of some of the guidelines to some 24

form of development and not to others. I do not see the words as providing an opportunity to depart from the requirement when their applicability to a particular form of development is clear.

It was also suggested that the choice of the words “Design Guidelines” might indicate that a degree of flexibility in their application was intended. However when the guidelines are more closely examined, it can be seen that, in certain parts, a flexible approach is expressly contemplated whereas, in other parts, the requirements are prescribed in a precise way.

Examples of wording which might allow some latitude are: § Each motel unit should be so designed as to have a view, a sunny aspect, an individual car parking space and privacy(8)(1)(h)(iii) § The amount, type and use of such space shall be to Council’s satisfaction (8) (1)(h)(iv).

In other instances a discretion is expressly given (e.g. Parking requirements for ancillary uses (8)(1)(h)(v)).

By contrast, in other parts, the wording of the requirements is direct and suggests no room for departure. Examples are: § In the design of the external environment surrounding a development, such design shall incorporate elements and facilities to enable disabled persons to gain access to and to enjoy the amenity of these environments (8)(1)(f). § A minimum of 70 percent of the gross floor area of any motel development shall be devoted solely to residential purposes (8)(1)(h)(11). § Each motel shall have one access point only which shall be located and constructed in accordance with the requirements of the director of Planning and Development (8)(1)(h)(v).

Such is the case with this requirement. The statement that “The minimum unit size is to be thirty-four square metres excluding access ways and corridors” is precise and does not suggest that any flexible approach is intended. The provision is clearly relevant to this application and, being part of the DCP, is (by reason of s.6.1.29(3)(b)) applicable to its assessment.

Requirements of a planning scheme have the force of law and may not be departed from unless the opportunity to do so is provided by law. In my opinion a sensible reading of the DCP does not allow departure from this requirement whether or not it would “inhibit the achievement of an urban design outcome in accordance with the DCP objectives.” (It might be noted in passing that it is difficult to see how the Council reached the last mentioned opinion but that is outside the scope of this decision.) 25

Accordingly the decision of the Council was contrary to law and the Applicant is entitled to the relief sought. It was not disputed that this was a matter that might be dealt with pursuant to s.4.1.21 of the Act and I declare that: “On a proper construction of the Logan City Planning Scheme there is no power to relax or vary the provisions of s.8(1)(h)(iii) of the Shailer Park Business Activity Node Development Control Plan requiring the minimal size of a motel unit to be thirty-four square metres excluding access ways and corridors” and that “The Logan City Council’s decision made on 6 July 1999 granting a development permit to the Second Respondent for a material change of use (motel) of premises at 3727- 3729 Pacific Highway, Loganholme described as Lots 3 and 4 on R.P. 83378 is invalid”.

[33] In this connection, Mr Litster noted the declining importance of the

mandatory/directory distinction (Project Blue Sky Inc v. The Australian

Broadcasting Authority (1998) 194 CLR 355, 390) while suggesting the clause 28

requirements are clearly mandatory. His authorities do not bear on the Council’s

ability to set up now that its 1998 approval was invalid. He has located authorities

in which attempts to set up estoppel against local authorities failed. Thus, in

Warringah Shire Council v. Murphy (1974) 2 NSWLR 195, Holland J. said at 196:-

“The defendant relies upon certain permissions that he claims to have received from council officers allowing him to exhibit the signs of his motor car and land and house that he has exhibited in the past.

In my opinion, it is not a case in which the council has any authority to give or refuse consent. The Ordinance permits a certain kind of activity within the limits of the definition of home occupation. There is no occasion for an application to the council for consent or for any conditions to be laid down by the council. If permission was given by the council or its officers to the defendant, then they were simply acting outside their authority. No estoppel or the like can arise against the council’s seeking to have the Ordinance enforced.”

[34] A helpful authority is Minister for Immigration and Ethnic Affairs v. Kurtovic

(1990) 21 FCR 192, decided by Neaves, Ryan and Gummow JJ. in the Federal 26

Court. Mr Kurtovic, who had been convicted of manslaughter, received a letter from the Immigration authorities in the following terms:-

“You are warned that any further conviction which renders you liable to deportation will lead to the question of your deportation being reconsidered by the Minister. Consequently, if you again become liable to deportation, you should expect that disregard of this warning will weigh heavily against you when the Minister reconsiders your case.”

He sought to set up the letter as preventing a later Minister’s deciding to deport him. At first instance, Einfeld J. considered there was an estoppel, but on the appeal this was rejected. Neaves J. said at 196:-

“In my opinion, the letter provides no sufficient foundation for a plea of estoppel. It contains no representation of fact and no promise by the Minister that the power under s.12 of the Migration Act would not be exercised unless the respondent was convicted of another offence, or other offences, of the kind, and in the circumstances, referred to in that section. The letter, on its proper reading, amounts, in my opinion, to no more than what it purports to be, namely a warning as to the likely consequences of the commission of a further offence.

In the second place, I am unable to discover in the evidence any sufficient basis for concluding that, to the knowledge of the Minister, the respondent relied upon the suggested implied promise and did so to his detriment.”

Ryan J. said at 200:-

“I share the doubts expressed by Gummow J., in his judgment which I have had the advantage of reading in draft, as to whether, properly construed, the letter written on behalf of the Minister on 17 December 1985 amounts to a representation that a further order for the deportation of Mr Kurtovic would not be made in the absence of changed circumstances. However, it is clear that the power conferred on the Minister by s.12 of the Migration Act 1958 (C’th) is one for the exercise of a public discretion. If it is not exercisable once and for all in respect of the same non-citizen, the Minister cannot by contract or any form of estoppel preclude himself or any successor to his office from exercising it at all, or in a particular way, in the future: see for example New South Wales Trotting Club Ltd v. Municipality of Glebe (1937) 37 SR (NSW) 288 at 307 and 313; and Ansett Transport Industries (Operations) Pty Ltd v. Commonwealth (1977) 139 CLR 54 at 74.”

Gummow J. dealt with estoppel issues at greater length:- 27

“As a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter’s power which would have the effect of altering a previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion..

The principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law. The generally accepted proposition is that:

“Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.”

(Halsbury’s Laws of England (4th ed.), Vol 44, “Statutes” §949). A recent illustration of the application of that principle is Formosa v. Secretary, Department of Social Security (1988) 81 ALR 687 at 695. But upon what basis does this proposition rest, and are there exceptions or qualifications to it?

Authorities in other countries were then examined. At 210 his Honour said:-

“However, it would be taking too narrow a view of the authorities to say that the concerns which find expression in the limitation put upon the doctrine of estoppel are limited to ensuring the performance of a statutory duty. The same limitation has been said by high authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding.” 28

He summarised the case before him as one of “an alleged estoppel which would

prevent the exercise of a discretion proposed in the appellant by the Migration Act.´

[35] Gummow J. went on in a comprehensive and most instructive review under the

heading of “Estoppel and ultra vires” (page 211-16) to discuss considerations I

consider pertinent in a case like the present. I have edited out a good deal of it, with

a view to preserving the sense of it, and have inserted the numbers (1) to (4) to

separate out particular approaches that appear to require separate examination.

“(1) It is best to distinguish cases where a decision maker cannot make a second decision by which he resiles from the first decision, not because he is estopped from doing so but because the power in question is spent by the making of the first decision. The point may be illustrated by reference to New South Wales Trotting/Club Ltd v. Municipality of Glebe (supra). Section 252 of the Local Government Act 1919 (NSW) provided that a public road might not be closed by the Minister unless the consent of the local council was first obtained. The Full Court held (Jordan CJ. dissenting) that, in bona fide exercise of its discretion, the council could withdraw its consent at any time before the Minister gave his consent. Jordan CJ. held that the council was functus officio when it gave its initial consent. All members of the Court agreed that if the council had power to withdraw its consent, it was not to be estopped from exercising that power. ……. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the stops or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue. …..I further consider this aspect with reference to s.12 of the Migration Act under the heading Was the Minister Functus Officio?

(2) Then there are cases where, upon its proper construction, the legislation may permit the decision maker to waive procedural requirements or observance of those procedural requirements which may be regarded as directory rather than mandatory. ….. 29

Here again, it will be observed, what is found is not an exception to principles of ultra vires, in favour of an estoppel doctrine, but a process of construction of the statute in question. That process produces the result that the relevant decision is not ultra vires, without recourse to any doctrine of estoppel based upon representations which involved a relaxation of what in any event was a non-mandatory requirement. ….

(3) Further, the alleged defect in question which is said to render the decision ultra vires may spring from what appears to be a lack of authority in the decision maker. What, in such a situation, is the role, if any, of apparent or ostensible authority? One bears in mind the significant element of notions of estoppel in that doctrine. …. Sit William Wade (in his Administrative Law (6th ed, 1988), at p.384) has said that it sacrificed the public interest since the court deprived the responsible authority of the powers of control which the statute had assigned to it and it only, whereas the courts normally were careful to prevent any legal doctrines from impeding the free exercise of statutory discretion in the public interest by the proper body. …… It remains to be seen whether there develops in this country any exception or qualification to the ultra vires doctrine which relies upon principles of ostensible authority and presumptions of regularity drawn from the law of agency in private law and from company law. …… Any such development here would be the first true exception or qualification to the general rejection of estoppel in public law. ….. (4) Lee J. spoke too widely when he said that estoppel by representation is available where the words or conduct of the decision maker involved a representation that the duty has been performed or the discretion exercised. As I see it, if the decision maker were estopped from resiling from a single exercise of his discretion, then the nature of the discretionary power (being exercisable from time to time) would be stifled. But what has been said above as to the role of estoppel in public law requires some qualifications in a particular class of case. …. In the exercise of powers derived from statute, a public authority may enter contracts or transfer property and will, in general, be subject to the ordinary private law rules dealing with contract, tort and property. ….. The limits that must be placed upon the effectiveness of contracts entered into by the donees of statutory discretionary powers, so that the contractual undertakings do not fetter the future exercise of that discretion, are discussed by Mason J. in Ansett Transport Industries 30

(Operations) Pty Ltd v. Commonwealth (1977) 139 CLR 54 at 73- 77; see also per Aickin J. (at 113-114). ….. In the United States, a distinction has been drawn expressed in terms of the “proprietary” as opposed to the “governmental” capacities of public bodies. The result is that if the public body is acting in its proprietary capacity, and if its representative has been acting within the scope of his authority, then an equitable estoppel may arise. ….. As Lord Wilberforce said:- “Many statutes also prescribe or at least presuppose the practical execution of policy decisions; a convenient description of this is to say that in addition to the are of policy or discretion, there is an operational area. Although this distinction between the policy area and the operational area is convenient, and illuminating, it is probably a distinction of degree; many ‘operational’ powers or duties have in them some element of ‘discretion’. It can safely be said that the more ‘operational’ a power or duty may be, the easier it is to superimpose upon it a common law duty of care.”

In my view, the same may be said of the super-imposition of the operation of the doctrines of promissory estoppel. ….. In Verwayen v. Commonwealth (No 2)[1989] VR 712, the Full Court held the Commonwealth estopped from resiling from its promise not to plead that the appellant's claim in tort was statute barred. The Court applied Waltons Stores (Interstate) Pty Ltd v. Maher (1988) 164 CLR 387. The promise by the Commonwealth did not require the exercise of any statutory discretion, and with respect, was properly treated as a case to be determined according to private law rules, including equitable or promissory estoppel, reinforced by s.64 of the Judiciary Act 1903. Waverley Transit Pty Ltd v. Metropolitan Transit Authority (unreported, Supreme Court, Vic, 2 June 1988) appears to pose greater difficulties. ….. I say nothing as to whether the facts of this case presented the requisite inducement or encouragement of an expectation or assumption, necessary to give rise to an estoppel, or alternatively a lying by with knowledge of the other party’s reliance. …. These were “planning” or “Policy”, rather than merely “operational”, decisions. …. the doctrine recognised in Waltons Stores (Interstate) Pty Ltd v. Maher has no application because of the need for the public authority to preserve its statutory discretion.” 31

[36] I find persuasive the demonstration that it is not possible to discover any established

species of estoppel in public law (with which we are concerned here) which would

be allowed to operate to prevent the Council from considering and/or raising as an

argument in the court the invalidity of its approval in May 1998 in connection with

the decision upon the appellant’s new application for extension of the currency

period, etc. This involves a new and separate decision being made. The Council’s

(and this court’s) ability to exercise the relevant discretion should, I think, be

preserved, consistently with the principles revealed by Gummow J.’s review. That

the approval sought to be extended was invalid is information which ought not to be

ignored.

[37] A bare legal issue is relevant here. Whether the court would finally judge the

appellant’s circumstances to be such that it could contend the Council potentially

was estopped would depend on factual matters which were not gone into.

[38] The present is not the only current example of a local government setting up the

invalidity of a consent or approval which a developer seeks to have varied in this

court. Compare Lucent Technologies Pty Ltd v Gold Coast City Council, 1579 of

2001, 24 August 2001, in which the issue remains to be resolved. There appears to

be a lack of authority to establish whether or not a local government may impugn

what it has granted in this way. Assuming for the moment that the Council is

correct, and that the original approval(s) could not have been validly granted,

anyone else may apply for a declaration of invalidity. See, for example, Telfrid

Corporation Pty Ltd v Logan City Council (2000) QPELR 91, especially at 94. As

a general proposition, among private citizens, the courts will not admit an estoppel

“which would have the effect pro tanto and in the particular case of repealing (a) 32

statute” – per Macrossan CJ (with the concurrence of Kelly SPC and Ambrose J) in

Day Ford Pty Ltd v Sciacca (1990) 2 Qd R 209.

[39] Mr Haydon supported his contention that estoppel may be available against the

Council, depending on the court’s view of the facts and circumstances when they

come to be examined, on the basis of The Commonwealth v Verwayen (1990) 170

CLR 394, especially per Deane J at 444-445 and Dawson J at 463. There the

Commonwealth was held estopped and/or to have given a waiver by the way in

which it had conducted litigation from invoking the Statute of Limitations. I would

regard that context as a very special one, not reflected here, where the Council is (at

least for the moment) simply setting up that an invalid approval ought not to be

extended.

[40] In Quach v Marrickville Municipal Council (1991) 22 NSWLR 55, in

circumstances indicated by the headnote:

“The Local Government Act 1919, s.398 (now repealed), as it existed on coming into operation on 1 September 1920 provided that: “Where, in a subdivision of any land, there has been provision made for a drainage reserve … the land so provided for a drainage reserve is hereby vested in the council in fee simple for drainage purposes.”

Held: (1) the Local Government Act 1919, s.398 (now repealed), conferred a statutory fee simple in a council in all drainage reserves that existed before 1922, even where the statutory right to a fee simple did not appear on the certificate of title and notwithstanding that is was contrary to the fee simple prescribed on the certificate of title. (58D-G,61E, 64C-E, 65G-66C). ….. (2) Although the question as to whether there is adverse possession is always a question of fact, when the real owner acquiesces in the payment of rates by a claimant it is very strong evidence of adverse possession in the claimant unless the payment is pursuant to some contract between those persons (66F-67E). 33

(3) Adverse possession can be obtained in respect of part of land notwithstanding that there had been no dispossession of the owner of other parts of the land and this may occur whether the division of land is made horizontally or vertically. (67E-69E).

(4) Accordingly, where land had vested in Council pursuant to the Local Government Act 1919, s.398, and where a claimant had occupied the whole of that land other than an area occupied by a drainage pipe and paid rates to the Council for over thirty years, the claimant was entitled to possession of and title to the whole of the land subject to appropriate rights of easement in respect of the drainage pipe. (69C-E).”

As Mr Haydon says, this “does not deny that, as a matter of law, estoppel can be raised against a local government.” He also referred to Crabb v Arun District

Council (1976) 1 Ch 179. There, as indicated by the headnote in the English Court of Appeal it was:

“Held, allowing the appeal, that the defendants, knowing of the plaintiff’s intention to sell his land in separate portions, by their representative led the plaintiff to believe that he would be granted a right of access at B and, by erecting the gates and failing to disabuse him of his belief, encouraged the plaintiff to act to his detriment in selling part of his land without reservation over it of any right of way, thereby giving rise to an equity in the plaintiff’s favour (post, pp. 189D-E, 19C-D, 197F-G); that that equity should be satisfied by granting the plaintiff a right of access at B and a right of way along the road; and that in view of the sterilisation of the plaintiff’s land for a considerable period resulting from the defendants’ action, the right should be granted without any payment by the plaintiff (post, pp. 189H-190A, 192F, 199E-F).”

Crabb involved no aspect of the Council acting illegally. In Quach (as in

Verwayen) the public authority so acted as to lose an advantage or right it had under statute. There can be cases where the statute is sufficiently imperative to preclude any estoppel, as in Roma Electric Light and Power Company Limited v Hair (1955)

St R Qd 311, where the plaintiff, it was held, could not be estopped by rendering an incorrect account from collecting the full charges for electricity which the statute required it to collect from its customers. 34

[41] For the appellant, considerable reliance was placed on Wort v Whitsunday Shire

Council (2001) QCA 344, 9 September 2001. Williams JA said in the leading

judgment

“The contention of the appellant before the Planning & Environment Court, and before this Court, was that the respondent was estopped from, imposing such a condition because of the representations contained in the letter of 28 October 1988 and the appellant’s reliance on those representations, or alternatively such conditions could not be validly imposed because they were unreasonable under the test derived from Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223.

In broad terms s.6.2(2) of the Local Government (Planning & Environment) Act 1990 empowers a local authority in the exercise of its discretion to require an applicant for approval to develop land to pay to the local authority an amount towards the cost incurred in providing the appropriate water supply and sewerage headworks. It was not disputed that at the time the application in question was made the respondent had in place a planning policy justifying the imposition of the conditions in question.

Counsel for the appellant in a carefully crafted submission did not contend that the respondent was estopped by representations in the letter of 28 October 1988 from altering its planning policy. The submission relied on was that the respondent could not apply (was estopped from applying) any altered planning policy to the appellant without at least giving him notice of its intention to do so. It was submitted that on the facts of this case the respondent should have notified the appellant of its intention to make the changes it did in 1995 so that he had the opportunity of making a development application under the earlier policy. As it did not give him such notice the contention is that the respondent is estopped from determining the application in question under the 1995 policy; on the appellant’s submission, his application must be determined in accordance with the 1985 provisions.

Both in the Planning & Environment Court and this Court reference was made to the reasoning of Mason CJ. in Attorney-General for New South Wales v. Quin (1990) 170 CLR 1, especially at 17 and 18. In the first passage (cited in the judgment below) the Chief Justice said:

“The Executive cannot by representation or promise disable itself from or hinder itself in, performing a statutory duty or exercising a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest by binding itself not to perform the duty or exercise the 35

discretion in a particular way in advance of the actual performance of the duty or exercise of the power”.

That general proposition was qualified on the following page where he said:

“What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion”.

If the appellant is to succeed in the light of those statements of principle he must establish that the asserted estoppel would not significantly hinder the exercise of the respondent’s discretion under s.6.2(2) in the public interest or that failing to hold the respondent to the representation would cause some grave injustice to the appellant which would occasion a greater harm to the public interest than would arise from holding the respondent to its representation.

There can, to my mind, be no doubting the proposition that it is in the public interest that a local authority vary its planning policy from time to time (as the duly elected authority having legislative power in that regard) to ensure that planning requirements of the locality meet changing circumstances as time goes by. Against that background it is significant that here the changes in 1995 were made after the previous policy has been in place for a period of 10 years. Further, the appellant had at least 7 years after he acquired the subject land to develop it in accordance with his present proposal and in accordance with the policy referred to in the letter of 28 October 1988, without incurring an obligation to make a further contribution for sewerage and water headworks.

It follows that the argument based on estoppel must fail for two reasons:

(1) The letter of 28 October 1988 on its proper construction does not contain a representation that the planning policy would not change at some time in the future so as to make 36

the appellant liable for headworks charges if he sought development approval after the date of that change.

(2) Even if the letter of 28 October 1988 contained a representation that policy would not be changed in the future (or would only be changed after notification to the appellant) that would not create an estoppel because of the principle that a public authority exercising a statutory discretion may not, because of the public interest, bind itself not to perform that duty in a situation where it was not demonstrated that consequent injustice to the individual who acted on the representation would constitute greater harm to the public interest than holding the authority to its representation."

[42] Mr Haydon’s main point regarding Wort was that there was significance in the

Court of Appeal’s failure to state, if this were the law, that estoppel is unavailable

against a local authority.

[43] In my opinion, the matter moved towards the right track at page 14 of the transcript

when the significance of the character of the decision the Council made or was

called on to make was identified as crucial. As noted, the present appeal concerns

decisions the Council was asked to make under s.3.5.22 and s.3.5.33 of the IPA. As

to the former, s.3.5.23(1) requires the assessment manager to “approve or refuse the

extension within 30 business days after receiving the request.” As to the latter,

s.3.5.33(7) requires the request to the Council to be assessed and decided having

regard to “(a) the matters (it) would have regard to if the request were a

development application.” In my opinion, adverting to Gummow J.’s

classifications, these are not “operational” decisions called for, but discretionary or

policy ones and there is no answer to the contention that the public interest requires

that a proper, unfettered decision be made. This requires that the Council be free to

take into consideration itself (and set up in this court) the invalidity of its original

decision in 1998. My opinion is that, even if the appellant otherwise demonstrated

a sympathetic case for an estoppel, as a matter of law, it would not be available 37

against the Council in respect of decisions of the presently relevant character. In

my view, as a matter of law, the Council cannot be estopped from asserting the

invalidity of what was previously approved by it. (This is not a case in which the

Council seeks to prevent anything being done pursuant to the 1998 and/or 1999

approvals.)

[44] Turning to the “preliminary issues” identified in the letter of 25 September 2001,

my conclusion is that the Council has established the first issue. No argument was

presented in relation to the second, which Mr Litster indicated he would not pursue

at this stage. Nor was argument made regarding the third and fourth “issues”. It

appears to me likely that success on the first carries with it success on the third and

fourth, but the parties should perhaps be given an opportunity to consider their

positions.

[45] So far as the estopppel issue is concerned, the Council has established that it is not

estopped from raising the other issues.